With the Stroke of a Pen: What Executive Branch
Actions Can President-elect Trump “Undo” on Day
One?
11/22/2016
Throughout the campaign, Donald Trump
suggested
that, if elected, he would rescind significant pieces of the Obama
Administration’s domestic policy.
Now that President-elect Trump will assume the duties and powers of the presidency
at noon on January 20, 2017,
questions
have been raised regarding what types of executive branch actions he can, in
fact, unilaterally and immediately revoke. While the Constitution does not permit the President to single-handedly
repeal or amend statutes, there is much that a new President can do to rapidly reverse the policies of a previous
administration.
The process and expediency by which an executive action can be rescinded depends on the type of action in question
and the existence of any statutorily or judicially imposed restraints. Generally, most executive actions can be broken
down into three basic categories:
executive orders
, which are written directives issued by the President that govern the
actions of executive branch officials and agencies;
discretionary agency directives and guidance documents
, which are
agency policy or interpretive pronouncements that are not issued pursuant to formalized procedures and do not have the
force and effect of law; and
agency rules
, which are issued pursuant to delegated authority from Congress—typically
pursuant to notice and comment rulemaking procedures— and have the force and effect of law.
Executive Orders
The President
can immediately revoke, modify, or supersede executive orders issued by a predecessor. In comparison to
statutes and agency rules, executive orders generally can be issued quickly and without compliance with elaborate
procedures or participation from other parties. The trade-off, however, for the expediency of an executive order is its
inherent fragility, especially across administrations. An executive order may be as swiftly repealed as it was issued, and
recent Presidents have traditionally exercised this prerogative. For example, both Presidents
Obama
and George W.
Bush
acted quickly to revoke executive orders issued by their predecessors that did not reflect their own policy goals.
Despite the attention paid to executive orders, not all policy initiatives emanating from the executive branch have been
implemented
via executive order
during the Obama Administration. Some of the current Administration’s more
contentious policies were
instead
implemented pursuant to discretionary agency directives and guidance documents.
Discretionary Agency Directives and Guidance Documents
A new President can also immediately direct the heads of executive branch agencies to withdraw discretionary
directives and guidance documents that were issued by an executive agency during a previous administration. These
pronouncements can generally be identified by the procedures, or lack thereof, employed by the agency prior to their
issuance. For example, these
directives
—which would include agency policy statements, interpretive rules, guidance
documents, letters, and press releases—are not issued pursuant to the
notice and comment rulemaking procedures
of the
Administrative Procedure Act (APA), and thus generally lack the force and effect of law. Like executive orders, the
expediency and ease with which discretionary agency directives and guidance documents are issued contributes to their
lack of permanence. It is unlikely that an agency head would need to comply with many additional procedures in
withdrawing these types of directives, and thus they can generally be withdrawn swiftly.
There are numerous examples of discretionary agency directives and guidance documents issued during the Obama
Administration. These documents form the basis for policies such as the Administration’s
Deferred Action for
Childhood Arrivals
program in immigration; the Department of Justice’s
non-enforcement of federal marijuana laws
in
states that have legalized the drug; and the Department of Education’s
interpretive guidance
governing the application
of civil rights laws to transgender individuals. All of these documents may be revoked by a new administration.
Agency Rules and Regulations
Agency rules and regulations may also be
repealed
by a new administration; however, the repeal process can be time
consuming and must comply with certain mandated procedures. The vast majority of agency “rulemakings” must
comply with the APA’s notice and comment process
, which requires an agency to provide the public with notice of a
proposed rulemaking and a meaningful opportunity to comment on the rule (generally lasting 30 days or more). The
APA explicitly
defines
rulemaking as “the agency process for formulating, amending, or
repealing a rule
.” Thus,
whether issuing a new rule, or amending or repealing an existing rule, agencies are typically required to engage in the
same notice and comment process. The APA provides explicit exceptions to the notice and comment requirements,
including when agencies can show “
good cause
” for why such procedures would be “impracticable, unnecessary, or
contrary to the public interest.”
At times
, agencies have relied on this narrow good cause exception as justification for
not engaging in notice and comment prior to repealing a rule; however, these arguments have typically been
rejected
by
the courts.
In addition, an agency’s repeal of a rule may generally be challenged by an injured party and will be subject to the same
standard of review
as new rules, namely “arbitrary and capricious” review. Under this standard of review, a reviewing
court
will consider whether the agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for
its action including a ‘rational connection between the facts found and the choice made.’” Accordingly, the
Supreme
Court
has established that “an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis
for the change ....” That “reasoned analysis” must be based on permissible factors and be reflected in evidence included
within the rulemaking record.
In light of these principles, and in the absence of specific statutory requirements, it would appear that a new President
can generally direct executive branch agencies to revoke existing rules. In implementing that direction, however, the
agency will likely have to engage in the notice and comment process to effectuate the repeal, and, in the case of a
challenge to the repeal, provide a “reasoned analysis” for its decision to repeal the rule.
Reports suggest
that that the
Trump Administration may target any number of existing rules for repeal, including rules issued by the Environmental
Protection Agency, Department of Labor, and Food and Drug Administration.
While the repeal of
finalized
rules may take time, recent Presidents have acted immediately to freeze agency actions on
pending
rules. As discussed here
, these moratoriums generally apply to all pending rules that have not yet been
published as final rules in the Federal Register. In addition, although administrative repeals may be subject to some
procedural delay, Congress has the authority, either through the traditional legislative process or in some cases through
the expedited procedures of the
Congressional Review Act
, to enact legislation that immediately terminates a rule.
Lastly, it should be noted that the President’s ability to compel agency action likely differs depending on whether the
agency is a traditional executive branch agency or an independent agency. Although the President’s scope of authority
over independent agencies is not completely clear, the President is
generally viewed
as lacking the direct authority to
order an independent agency to repeal a rule or revoke a discretionary agency directive or guidance document. Over
time, however, the President may be able to appoint members to head the independent agency that will be willing to
implement his viewpoints.
Posted at 11/22/2016 11:22 AM
